CHARLES KIMMETT and SUZANNE KIMMETT vs. TOWN OF TOLLAND and M. STEVENS BARTELS, DAVID BARNEY, and BILL WALKER, as they are members of the ZONING BOARD OF APPEALS OF THE TOWN OF TOLLAND

MISC 08-387776

June 24, 2010

Sands, J.

JUDGMENT

Plaintiffs filed their unverified Complaint on November 20, 2008, appealing, pursuant to G. L. c. 40A, § 17, the denial of a variance by Defendant Zoning Board of Appeals of the Town of Tolland (the ZBA), and seeking to determine, pursuant to G. L. c. 240, § 14A, the interpretation of a provision of the Tolland Zoning By-law (the By-law). Defendant Town of Tolland (the Town) and the ZBA (together, Defendants) filed their Answer on January 20, 2009. On May 11, 2009, Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Joint Statement of Material Facts, and Appendix. Plaintiffs filed Supplement to Joint Statement of Material Facts on June 3, 2009. On June 9, 2009, Defendants filed their Cross-Motion for Summary Judgment, together with supporting memorandum. Plaintiffs filed their Reply on June 22, 2009. A hearing was held on both motions on July 29, 2009, at which time both motions were taken under advisement. At this courts request, the parties filed a Joint Statement of Facts Regarding 1970 By-law Adoption (the Joint Statement) on August 7, 2009. A decision of todays date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that Section VII A.6 of the June 29, 1978 amendment to the By-law exempts Lot F-5 (Locus) from the application of the merger doctrine, as such lot is shown on a plan titled Plan of Land in Tolland, Massachusetts Belonging to Chamonix Chalet Properties, Inc. dated April 1, 1968, and prepared by Almer Huntley, Jr. & Associates, Inc. (the Plan).

ORDERED and ADJUDGED that Locus is not a buildable lot and variances are required, as a result of the By-law amendment on November 15, 2005.

ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is DENIED and Defendants Cross-Motion for Summary Judgment is ALLOWED.